OBAYUWANA V. GOVERNOR OF BENDEL STATE & ANOR

• Pages: 524-547

524

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NIGERIAN SUPREME COURT CASES

[1982] N.S.C.C.

tent to deal with the ancillary issues that arose in the course of its determining the

claim brought by the appellants including the issue raised on the constitutional va-

lidity of the Edicts.

For these and the other reasons contained in the judgments aforesaid this ap-

peal must succeed and it is hereby allowed.

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Appeal allowed

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5

OBAYUWANA V. GOVERNOR OF BENDEL STATE

& ANOR.



10

GEORGE I.U. OBAYUWANA

V

PROF. AMBROSE ALLI,

GOVERNOR BENDEL STATE

THE A-G., BENDEL STATE

SUPREME COURT OF NIGERIA

IRIKEFE,



J.S.C.

BELLO,



J.S.C.

IDIGBE,

OBASEKI,



J.S.C.

ESO,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

3rd December, 1982

APPELLANT

RESPONDENTS

SUIT NO. SC 16/1982

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Constitutional Law - Executive powers of State Governor under civilian Constitution

of 1979 - Exclusion of such executive power as vested in other executive

bodies - Power to remove customary court members from office constitutionally

vested in State's Judicial Service Commission.

Contract - Frustration and discharge - Statutory abolition of customary courts prior

to expiration of plaintiffs contract of employment as customary court member

- Invalidity of order made by State Governor cancelling warrants of all

customary courts - Plaintiff's entitlement to remuneration up to expiry date of

his contract.

ISSUES:

1.

Whether the Governor of Bendel State has power to remove a member of a

customary court (under contract) from office.

2.

Whether a State Governor has power to cancel the warrant of a customary court.

3.

Whether the Customary Courts (Abolition) Law No.10 of 1980 can determine

the appointment of a member of a customary court employed by the Judicial

Service Commission, under a contract.

FACTS:

In January 1980, the Governor of Bendel State made the Customary Courts

(Revocation of Appointment of President and Members) Order, 1979 whereby he

purported to revoked the appointment of the appellant as a member of a Custom-

ary Court in Berin. He also made the Customary Courts (Cancellation of War-

rants) Order 1980, by which all customary courts in Bendel State, were cancelled.

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OBAYUWANA V. GOVERNOR OF BENDEL STATE & ANOR.

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525

This was purportedly done in the exercise of the Governor's executive power under

Sections 162(2) and 275 (4) of the 1979 Constitution and section 3(6) of Edict No.9

of 1978.

Plaintiff/appellant brought an action in the High Court claiming that the orders

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were unconstitutional, null and void. The trial court granted one of the plaintiffs

pleas but held that the appellant's appointment terminated on the date the Act came

into effect. Appellant appealed to the Federal Court of Appeal which held that the

Governor had power to cancel warrants of customary courts. On further appeal

to the Supreme Court.

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HELD:

1.

The Governor of Bendel State has no power to remove a member of a

Customary Court under contract, from office.

2.

The Civilian Governor of Bendel State cannot act under the power granted to

the Military Governor under Edict No.9 of 1978 to cancel customary court

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warrants. The revocation Order was therefore null and void.

3.

The Customary Courts (Abolition) Law No.10 of 1980 cannot terminate the

appointment of a member of a Customary Court employed by the Judicial

Service Commission under a contract.

4.

The establishment and abolition of courts of iaw or authorities, cannot be

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subject to executive action. The Governors action was unconstitutional null and

void.

CASES REFERRED TO IN JUDGMENT:

1.

Reilly v. The King

(1934) A.C. 76.

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2.

James v. Cowan

43 C.L.R. 409.

3.

Chief Oteri & Ors v. Awinawhi & Ors

FCA/B/99/80.

4.

Ewerami v. African Continental Bank Ltd.

(1978) 4 S.C. 99.

5.

Marshall v. Granuill

(1917) 2 K.B. E07.

6.

Myron Wiener v. United States

(1958) 357 U.S. 349.

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7.

Governor of Kaduna State & Ors. v. Lawal Kagoma

1982 6 S.C. 87, 129.

8.

Att-Gen. Ogun State & ors v. Att-Gen. Federation

(1982) 1 & 2 S.C. 42.

9.

Studhome v. South Western Gas Board

(1954) 1 WLR 313.

10

Marbury v. Madison

5

U.S.

337,

1 Crauch 137. 2 L. Ed. 60.

11.Radio Corporation Proprietary Ltd. v. The Commonwealth

(1937-38) 59 CLR

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170.

12. Elliot v. The Commonwealth of Australia & Anor

(1935-36) 59 C.L.R. 657.

13.Huddart Parker Ltd. & Ors v. The Commonwealth & anor

(1931) 44 C.L.R.

498

14.Arthur Yates &

Co.

Proprietary Ltd. v. The Vegetable Seeds Committee & ors

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(1945) 72 C.L.R. 37. 64.

Dr. M. Odge, S.A.N. (with him H.T.O. Coker, S.A.N. Miss B. Nortey)

for Appellants.

S.D. Osakwe D.L.D. Bendel State

for Respondents.

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IDIGBE, J.S.C.

(Delivering the Judgment of the Court): The issues which bring

the parties herein to the courts below and now to this court are whether,

(a) the Customary Courts (Revocation of Appointments of Presidents and Mem-

bers) Order 1979 published as B.S.L.N.1 of 1980 (hereinafter referred to as

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"Revocation Order") purporting to revoke the appointment of the appellant

as a member of Oredo Grade II Customary Court No.1 in Oredo Local Gov-

ernment Area of Bendel State of Nigeria and to remove the plaintiff from of-

fice as a member of the said Customary Court is lawful, constitutional and

valid? and